Friday, March 30, 2012

Legal Services to Chase Children

A new national legal service has been launched to provide free legal assistance to Australian parents dealing with the international abduction of a child.

Attorney-General, Nicola Roxon said the service would provide practical support to parents in distressing circumstances.

“We want to make it as straightforward as possible for parents to get the assistance they need when dealing with the abduction of their children from Australia,” Ms Roxon said.

“The Hague Convention on international child abduction, to which Australia is a signatory, provides a strong mechanism for lawfully seeking the return of abducted children to Australia. However, accessing information about the Convention and knowing how to apply to meet its requirements can be daunting for many parents during one of the most stressful and difficult times of their lives.”

She said the new legal assistance service would complement the counselling and mediation service already provided by International Social Services (ISS) Australia.

She said a new funding agreement with ISS would provide a national service to help parents prepare and lodge applications from Australia for the return of, or access to, children under the Convention.

Ms Roxon said it would also address key recommendations of the Senate Legal and Constitutional Affairs References Committee report into international child abduction to and from Australia.

“This service will now provide a one stop shop offering legal and counselling assistance for Australian families affected by the abduction of their child from Australia,” she said.

“With the assistance of International Social Services, Australian parents will be able to apply directly to the Attorney-General’s Department, as the Australian Central Authority – and the national contact - for the Hague Convention.”

She said more information could be accessed at this PS News link.

Thursday, March 15, 2012

Important New U.K. Ruling on Grave Risk in Hague Abduction Cases

Jeremy D. Morley
The U.K. Supreme Court has just issued an extremely important opinion concerning the grave risk of harm exception in a Hague abduction case.  In the Matter of S (a Child) [2012] UKSC 10. The ruling is surprising in at least three respects.
The first is that the Supreme Court bluntly castigated another high-level court in another jurisdiction -- the European Court of Human Rights. In X v Latvia the European Court reiterated its decision in the infamous Neulinger case that the European Convention on Human Rights requires an in-depth examination concerning the family’s best interests in any case under the Hague Abduction Convention.
The Supreme Court (Lord Wilson) completely rejected the European Court’s decision in X v. Latvia, stating, “[w]ith the utmost respect to our colleagues in Strasbourg” (!), that “we reiterate our conviction … that neither the Hague Convention nor, surely, article 8 of the European Convention requires the court which determines an application under the former to conduct an in-depth examination of the sort described. Indeed it would be entirely inappropriate.”
In the humble opinion of this author, the Supreme Court’s rebuke is welcome and entirely correct, for the reasons I have previously stated in my article, The Hague Abduction Convention and Human Rights: A Critique of the Neulinger Case.
The second somewhat surprising element of the decision in In the Matter of S is that the U.K. Supreme Court has made it clear that in its previous decision last year in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 it did, indeed, intend to change the English interpretation of  the grave risk exception to the Hague Convention in a far broader way than English courts had previously adopted.
The third element that is surprising to a lawyer on this side of the pond is that the Supreme Court did not merely overturn the decision of the English Court of Appeal for objective reasons but it lashed out at that court in remarkably forthright and harsh language for its failure to read correctly and apply the Supreme Court decision in re E.
The bottom line is that, although the U.K. Supreme Court declared that in re E it had not really changed the law concerning Article 13(b), but had merely removed the “excrescence” that earlier case law to the plain meaning of the treaty, it has in fact broadened the exception as it is applied in England.
In a key paragraph of re E  the Supreme Court stated that,
“[T]he words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" …"'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: eg, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child.” (emphasis added)
Now, in In the Matter of S (a Child)the U.K. Supreme Court had to determine how apply its prior ruling. A British mother living in Australia with the child’s Australian father had separated, obtained an “apprehended domestic violence order” in the Australian courts, and then removed the child to England. She defended the Hague case by submitting strong psychiatric evidence about her fear of returning to Australia. The evidence showed that she was psychologically fine in England but that if she were to return to Australia her prior emotional trauma -- diagnosed as Battered Women's Syndrome, a form of Post-Traumatic Stress Disorder -- would likely return.  She also submitted evidence of some domestic violence against her but none as to the child.
The trial court determined that the likely psychiatric and psychological impact on the mother of a return to Australia was significant and severe. The source of her stress (the father) was in Australia. Contact with this source of stress (re-exposure to the father) would put her at risk for further acute stress and post traumatic stress. She had a prior history of anxiety and depression which not only lowered her threshold for acute stress and post traumatic stress but also increased the likelihood of a recurrence of her anxiety and depression.
The Court of Appeal overturned the trial court’s ruling because her defense was based merely on her subjective perception of risks which might lack any foundation in reality.
The Supreme Court restored the trial court’s original judgment in the basis that, “It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court’s assessment of the mother’s mental state if the child is returned.”
The Supreme Court declared that the Court of Appeal had wrongly defined the crucial question as whether the mother's anxieties were realistically and reasonably held. It stated that the critical question was what would happen if the parent and child were returned.  If, upon return, the parent would suffer such anxieties that their effect on the parent's mental health would create a situation that would be intolerable for the child, then the child should not be returned. It did not matter whether the mother’s anxieties were reasonable or unreasonable.
The Supreme Court decision is also surprising for its failure to discuss the extent to which the child would be expected to suffer as a result of the mother’s anticipated trauma.

Wednesday, March 14, 2012

Hope for parents denied access to children in Japan

By 14 Mar 2012

After years of foreign pressure, Japan has finally taken a step closer to joining an international convention on settling cross-border child custody disputes

According to local reports, the cabinet approved a bill last Friday which will bring Japan in line with the Hague Convention on international child abduction.

Japan is the only G8 country not signed up the 1980 treaty, which aims to facilitate the prompt return of children illegally taken to a foreign country to the place where he or she usually lives.

Because Japan has not joined the agreement, many non-Japanese parents whose children have been taken to the country by a former partner have found it extremely difficult to gain access to their childen – even if they were granted custody rights in their home country.

Japan, which favours sole custody, does not consider international parental abduction in itself a criminal offence.

Ann Thomas, managing partner of The International Family Law Group LLP said that she had seen a number of cases where a parent, usually a father, had been completely cut out of the lives of their children after they were taken to Japan, which could took many years to resolve – if they were resolved at all

“Recently, I dealt with a case in which a father in the West Midlands was denied all involvement when the mother took his children to Japan without his consent,” she said. "He was even refused telephone contact. Recently, we have been able to secure regular Skype contact and face to face contact from time to time, but it took four years to conclude.”

Although the movement towards signing the convention was welcomed in many quarters, doubts have been expressed as to how far its rules will be implemented. Particular concern has been raised over how Japanese courts will apply the convention's provisions against return, including the provision that deals with the possibility that returning would expose the child to physical or psychological harm.

Jeremy Morley, an international family lawyer, told Telegraph Expat: “I have not seen the fine print of the Japanese law that adopts the Hague Convention in Japan but I understand that it will include a broad definition of the 'grave risk' exception to the convention. Such a definition will effectively relegate the role of the Hague Convention in Japan to being yet another meaningless document that will provide cover for abductions to continue. The entire family law system in Japan is dysfunctional and court orders are very difficult to enforce... I fully expect that Japan will be in violation of its obligations under the Hague Convention as soon as it signs it.”

The bill is expected to now be debated in Parliament.
Click Here for the article at The Telegraph's website

Wednesday, March 07, 2012

International Family Law Seminar in DC

Join us for a tremendous seminar on International Family Law in Washington, DC with a wide array of exceptionally well-qualified speakers. 
Sessions on: International Child Support; International Family Formation; Limitations on Planning of Structures Issues; International Child Relocation; International Prenuptial Agreements; Islamic Family Law; Offshore Assets; Recognition of Foreign Court Orders and Conflicts of Laws; & International Couples in Transit.
 I will be chairing the session on International Prenuptial Agreements.

Tuesday, March 06, 2012

Iran's Temporary Marriage Law

By Jeremy D. Morley
Iran's parliament has passed legislation this week that expressly authorizes “temporary marriages” and requires their registration only in limited circumstances, primarily if the woman becomes pregnant.
The law allows men to have as many sexual partners as they want, sanctioned by sharia law under the term "temporary marriage".
Sex outside marriage is a crime in Iran punishable by 100 lashes or, if adulterous, by stoning to death. However, temporary marriage is a way around those provisions. Such a marriage can be for a few minutes or several years. If a couple is married, the man -- but not the woman – can have as many additional temporary marriages as he wants. 
The system is known as the sigheh system and the marriage contracts are known as NikaŠł• al-Mut’ah ("pleasure marriage") contracts. They are fixed-term contractual marriages and are customary in the Shia tradition.
The man in a temporary marriage can end the sigheh at almost any time, but there is no divorce right for women in temporary marriages. For her they continue until they automatically expire at the end of the stated period of time.
A spokeswoman for the Iranian Parliament's Cultural Commission had proposed that registration should be compulsory for all temporary marriages. That proposal was rejected on the grounds of privacy. A member of the Parliament's Legal and judicial Commission stated that the main appeal of temporary marriages is that are unregistered, because family issues, especially marriage, are among the most private matters in an individual's life, and lawmakers should not interfere so deeply in people's private affairs.
Many people consider sigheh to be a type of legalized prostitution. Others see it as a loophole for couples to have a relationship within the rigid Islamic laws Women who practice temporary marriage are often the poor and desperate, while men from any age and economic status may find the practice attractive. It was the subject of a film in 2009 entitled In the Bazaar of Sexes, the poster for which is shown above.